Body Solutions Maker Accused of Fattened Claims

Dec 6, 2002 | San Antonio Express News

The Federal Trade Commission slapped the maker of Body Solutions diet formula with a lawsuit Thursday, saying the company deceived consumers with claims that its product would help them lose weight during sleep.

The FTC's lawsuit came after a 12-state investigation of San Antonio-based Mark Nutritionals Inc., which makes and markets Body Solutions. The company filed for Chapter 11 bankruptcy protection in September.

The federal government, along with Texas and Illinois, allege Mark Nutritionals made claims that are false or misleading in its advertising on radio and on the company Web site.

It isn't true, the FTC's suit says, that Body Solutions' customers could lose 20 to 40 pounds on its "lose weight while you sleep" plan, without exercise and while eating high-calorie foods.

"These are claims that from a scientific perspective are not possible," said J. Howard Beales, director of the FTC's Bureau of Consumer Protection.

The FTC cited the testimonial of a Minneapolis disc jockey as an example of what it found objectionable about the company's advertising.

"I'm not worried about (eating hot dogs, peanuts and nachos) because you can eat whatever you want, as long as you don't eat for three hours after your last meal or snack before you go to bed and you take the Evening Weight Loss Formula with a glass of water. The pounds just go away," the DJ said.

"You don't have to give anything up. It's not a diet. You don't have to deprive yourself," the DJ added.

When the company began selling its product in 1999, radio disc jockeys and talk-show hosts around the nation bombarded listeners with frequent testimonials, saying Body Solutions would let them lose weight during sleep and without exercise.

The FTC's Beales said, "I don't think we've seen a case that involved this many different endorsers or disc jockeys. I think the scale and the approach here make this unique.

"This was bilingual deception," Beales said of the many ads on English and Spanish language stations.

The agency seeks an injunction in U.S. District Court in San Antonio to stop Body Solution's advertising and asking for restitution for consumers.

The FTC and Body Solutions' parent have reached an agreement for a preliminary injunction that would halt the company's claims used in past advertising and to remove the words "weight loss" from product names.

For example, "Body Solutions Evening Weight Loss Formula" now is listed on the company Web site as "Evening Formula."

Body Solutions' products already on shelves or in the warehouse can be sold without altering the labels if, as expected, a judge signs the order in the next few days.

If the government is successful, Body Solutions' parent company would have to pay back consumers who bought the products.

"I don't know how much it will be, but I think it's a very real possibility we'll get significant redress for consumers," Beales said. "We think pills, potions and lotions do not work and will not help you lose weight."

Body Solutions' parent racked up $190 million in sales and advertised on more than 650 radio stations in 110 cities, the FTC said. The company grew from $10 million in sales in 1999 to $100 million in sales in 2001. Then its financial fortunes shifted.

The lawsuits filed by the FTC and Texas both name company founders Harry Siskind, a former tabloid celebrity photographer, and New Jersey lawyer Edward D'Alessandro as defendants. The two are co-owners of the company but have had no active involvement in the company since the bankruptcy.

The Texas suit also names as defendants Mark Nutritionals' former Executive Vice President Patti Siskind and Gilbert Kaats, who heads Research Foundation Inc., a company that did the product research touted by Mark Nutritionals.

Beales said the FTC did not take action against the radio personalities because it was more efficient to target the company and the owners.

How culpable the endorsers were also would depend on "their degree of knowledge and involvement," he said.

Beales called on the media to stop accepting advertising for weight loss products that could be false or misleading.

"We think responsible members of the media will cooperate" to protect their credibility," he said.

Mark Nutritionals is trying to climb out from under more than $30 million in debts by stripping down the operation and focusing on selling the product from store shelves and rebuilding its sales over the phone.

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